To be honest, as a someone who just seeks a JAR PPL/IR I'm not going to get too worked up about this. Spoke to GTS at Bournemouth recently about doing the ground school and they said that since I already hold an ICAO IR then I wouldn't even have to attend any of the consolidation days provided I completed the distance learning to the required standard, I could then just go and pass the exams at Gatwick without ever having sat in a classroom. I think I'll probably do the exams in two sessions and since we still have a bit of time before EASA FCL comes in there's no rush.

15hrs conversion is a bit of drag but in reality I could do that in a week or two sometime next summer when I have the time...not really a bit deal.

PS I'm sorry if anyone else is upset at me playing this down...;)

Hmm, I am still not convinced that the pilot is the operator. If he is not then I suspect if the operator is an off shore trust or an off shore company then the pilots will be free to continue as they always have.

FWIW I was chatting to a barrister mate of mine today who has a passing interest. I emailed him the relevant proposed regulations and he was of the same opinion.

It seems far more likely to me EASA are after owner operator pilots who are resident in the EU.

I do however think that pilots who own their aircraft via a trust, are UK resident and have not ensured they are operating in accordance with SOPs laid down by their trustees could be vunerable.

I am not a legal expert, but there is an extensive and legislatively supported tradition of discrimination based on residence and citizenship.

For example,

• people who are not citizen of the EU do not have an absolute right to live here as compared to European citizen who do.
• generally residents are taxed but visitors are not (I know this one is much more complicated)
• visitors to the EU are generally not allowed to get a job but citizens are allowed to work.
• Citizens go through the short queue at immigration and visitors go through the long one
• the duty free allowances are different for residents and visitors

The list goes on.

It is somewhat unusual for a democracy to treat its citizens and residents adversely to visitors, but this is Europe.


Fuji,

The question of who is or is not an operator and does the structure mean the pilot does or does not need an EASA licence could provide weeks of entertainment during a ramp check or an insurance renewal.

I can easily imagine the regulators noticing and providing detail extra regs, equally, it would be typical for them to totally blow it and open a gapping whole (as they so often do in tax and other matters).


Related to the general thread, does anyone know when the FCL.008 output surfaces from the EASA process?

Of course the pilot isn't by definition the operator -if, for example, the airplane is owned by a company who use it for corporate transport and the pilot is paid to fly it under the direction of the decision-makers in the company who determine where and when it should fly.

The operator is the person or entity having operational control - eg. where and when the aircraft flies.
The corporate aircraft and paid pilot is a perfect example where the owner is the operator and the pilot is not.

However, in any conventional private GA N-reg arrangement, where an individual is a US trust beneficiary for what is essentially his private airplane that he flies, he is the operator.

Exactly. THe ownership is not relevant, it is the residency of the operator is. The distinction is important because a US company (the operator) could hire a European pilot to fly their aircraft in Europe. No problem, since the Operator is not EU resident. Another example is a non-EU airline with crew resident in Europe. No problem.

I am sorry Fuji, this is just clutching at a rather delusional straw. The idea that if your Trust publishes some SOPs (does any Trust do this?) that somehow obviates you from being the Operator is silly.

But that is exactly my point. You suggest since the Trust lays down operating conditions, it (and not the private pilot who is the beneficiary and who uses the plane at his discretion for his purposes) is the operator. The trust is no more the operator by virtue of the fact it may lay down some operating conditions than the insurers, the CAA or the engine/airframe manufacturers are. The operator is the one who decides where and when it flies.

If that decision is made by someone in Delaware, what exactly is the point of having "overcome" the EASA regulations by losing the ability to fly your airplane where you want?

Of course the airline is the operator in your Easyjet example. The pilots fly to a schedule assigned to them by the operator (the airline). So fine, if you have someone in Delaware tell you where to fly your airplane, they indeed will be the operator. But what is the point of that? OTOH, if that were a paper exercise, masking that the European pilot was really the one deciding, then such a sham wouldn't stand up 5mins in court. You know and I know.

brgds
421C

421C - I think you have muddled up your quotes - not that it matters.

Fair enough, but I think for the time being we will have to disagree on this one. I have spent a lot of my professional time involved with trusts as have the legislators!

Distinguishing one trust from another (given both conduct themselves properly) because you dont like the way one trust is operating over another will find very little favour with the Courts, would be perverse and more importantly, it would be very difficult to draft legislation to have this effect.

There is a good analogy. A UK limited company may comprise effectively one person or a thousand. It would be a great idea to tax the individual the same as any other individual but the company with 20 shareholders differently. Good luck.

However, as interesting as the debate, the problem will be whether anyone wants to take a chance on their interpretation of the legisaltion as you say over the ramp checker's interpretation.

It doesnt matter to me as I have said but it will be interesting to see exactly what is intended.

421C - as ever your posts are very interesting and informative, dont misunderstand me, you could well be correct, I am playing devil's advocate.

Fuji

This is nothing to do with Trusts and trust law. It is nothing to do with tax law. The issue is not arcane. It is a simple question of who is the Operator of the aircraft (who is making the decisions about where and when it flies)?

The US entity doesn't have to be a Trust or a Company, it could be your Aunt Betty who lives in Tampa.

The point is if Aunt Betty (or the Trust) is the operator, then they tell you when to fly the plane and where. What is the point of that?

If you decide, you are the operator.

If you attempt to mask the latter with the former, any such sham, however elaborate, would be totally vulnerable. Why not just forge your EASA paperwork?

brgds
421C

I absolutely take this discussion in that spirit. If I am being emphatic, it's because I feely strongly that other readers shouldn't be deluded by this "potential loophole". I think it's a very dead end.

Bearing in mind that this proposal is driven wholly by politics of envy, I think that a lot of "target" operators (where the operator does genuinely decide where the plane flies next) will escape this proposal.

A lot of corporate jet operators will meet the non EU resident operator requirement.

These are the most emotionally targetted people. They have the biggest N-reg jets. And they will escape all this.

We have been around this block in 2005. Those operators who had fleets big enough to rotate them (through another country, or through a leasing company) so no single airframe spent > 90 days parked in the UK each year, would have escaped the reg, while the little N-reg people would have been caught up. This would have been completely hopeless in the politics of envy scenario where it is the big shiny stuff you want to target. (Plus you would have needed to keep a "parked hours" logbook, in addition to the usual "flying hours" logbook(s) :ugh: ).

And the permanent number of "genuine" non-EU visitors flying into the EU in N-reg planes will make detection very hard, because a lot of them will be speaking normal English, etc. There is no "proof of residence" piece of paper you can wave at the ramp inspector. That's not how aviation works.

Is "who decides where and when the aircraft flies" a significant defining feature of an operator? Sure, with an airline, the airline is the operator, it decides where and when the aircraft flies and the pilot flies the aircraft from A to B. Much the same with a corporate flight department. But with a flying school the operator is the flying school, not the instructor. But the flying school doesn't decide specifically where and when the instructor and pupil will be flying. Within broad guidelines that's left to the discretion of the instructor.

When I used to be in a group, I always considered the group the operator of the aircraft. In a similar manner to a flying school's booking procedure, the group decided who had the plane when and the specifics of the flight were left to the pilot. The operator didn't suddenly change each time the brakes came off. If there is anyone who could validly claim to have separate pilots and operator, it must be group-owners.

Having said that, this operator / pilot thing is a very weak loophole, if it exists at all. It seems a lot of effort just to avoid having to put in a little effort studying something which is mostly fun and interesting. It would take a brave person to risk using it rather than simply getting the proper paperwork.

Where does this "operator" thing come from? My understanding is the requirement fir the crews to have EASA licences, nothing to do with the operator?

It comes from Article 4 of the Basic Regulation. This defines the applicability of the EASA regulations, including FCL. They are applicable to an aircraft "registered in a third country and used .... by an operator established or residing in the Community".

The residency of the operator is the key point. If the Operator is outside the EU, then clearly there can not be a requirement for complying with EASA FCL (eg. a foreign airline or corporate jet flying into the EU), nor can they apply to a foreign operater even if the crew are EU residents (for example, a non-EU airline with crews based in the EU).

So, someone resident in the US can fly their N-reg airplane into Europe. They can even pay an EU resident with FAA certificates only to fly it. But if the operator is resident in the EU, the crew must have EASA FCL licenses. The debate is whether you could consider the US Trust to be the operator of an EU resident's aircraft. If so, the EU resident wouldn't need to comply with EASA FCL. My point is that in the conventional way EU private pilots fly their N-reg airplanes, they (not the Trust legal owner) are the Operator.

brgds
421C

That begs the question what sort of EASA Licence? I hold an FAA ATP and fly Citations on private jets. What is the minimum required to fly a citation? a basic PPL IR. The fact that I am being paid to fly an N reg is nothing to do with EASA. So at worst all i need to convert isnt my ATP to an ATP but for EASA purposes a PPL IR.

Payments or money earnt are on the FAA ATP.

The whole stupid and sad thing is that EASA are trying to add their own licences whatever they are supposed to be to a foreign reg aircraft and foreign licences that dont require EASA to be legal.

What is the point? There is no sensible point to this whole charade.

Frankly I would be happy to flout EASA and say take me to court with your rubbish so we can ridicule the complete NON SENSE.

You can paint or package this all you want but it is still DISCRIMINATION You almost sound as if you are mouthpiecing the glorification of EASA. Bose the whole thing is a nonsense and if you really believe in protecting pilots interests you wouldnt write stuff as above.

421C
I think it would be simple to legally make the operator whoever you want and based wherever you want.

Pace

So the Ramp Inspector asks to see your EASA licences. You say "no, I am not an EU resident, I don't need one". Fine, he asks you to sign a declaration to that effect. How much of a Sherlock Holmes will he have to be to question the veracity of someone with a European accent and passport in a light piston airplane claiming to be a non-EU operator or the pilot of a US corporate flight dept? He forwards this to the NAA enforcement team. There will be thousands of NAA officials in Euriope with less work to do after EASA take over, so you can be sure there will be scope for this sort of thing. They decide who they want to chase up. Aviation regs of this sort are trivially easy to enforce, because the administrative paper traill is so easy to follow up - it's not like a dispute over low flying or did you bust the minima. It's a matter of factual record.

...so what happens then when the letter reaches the sensible Trust administrators. You think they will conspire to establish false claims about residency or about who the operators is? No, so then you get the letter from the NAA legal team....

Sorry, I am not writing this because I enjoy it. I just don't think that anyone has anything to gain (except perhaps some false comfort) by deluding themselves that
- EASA's rules on FRA will get not get enacted
- and if even if they do, there will be a big loophole
- and even if there isn't, the regulations will be unenforceable

brgds
421C

Article 4.1(b) states that the Regulation applies to personnel involved in the operation of aircraft "registered in a third country, or registered in a Member State which has delegated their regulatory safety oversight to a third country, and used by a third-country operator into, within or out of the Community"
But, to add a MPA type rating to an EASA PPL, you will need to have passed the ATPL exams, so what's the advantage?

421C,

I am struggling a bit on this operator stuff. HMRC on the GAR specifically require details on the operator and not the pilot (so the club, school, owner, is listed).

The ANO has a large number of technical requirements on the operator that are unlikely to be met by the average group pilot.

If I let someone fly my airplane I wouldn't expect to give them access to my aircraft logs for example. I accept that for a single beneficial owner, they are the operator, owner and pilot. However, in groups just because someone is flying the plane doesn't appear to make them the operator.

It would be even less logical if a corporate entity with directors handling separate aspects would be deemed to have each director be personally an operator rather than the corporate entity as the operator.

For someone like Pace (I assume flying some company's N-reg jet) it must either truly be an American controlled company or owned by an entity which could easily establish it's operating essence as a non EU based US Person.

I have struggled to find a very firm definition of what constitutes an operator (other than in The absence of an entity that acts as the manage, it is the pilot)



----------
On your example, I don't think anyone has suggested saying one is not a EU resident/citizen. However, they are saying the operator is not located in the EU (the operator being the owner, policy setter, etc who has rented the aircraft to the pilot).

So what EASA are proposing is that you hold a type rating as well as licences that are not valid or legal or hold any relevance on the aircraft you will be flying?

NON SENSE Roll on the courts ;)

Pace

From Article 7.4 of the latest FCL Draft

I interpret this as meaning that whilst someone in Pace's position will need an EASA licence and IR, the Type Rating may be added purely on the basis of the 3rd country TR.

However, the Basic Regulation says you have to comply with all the EASA regs, it doesn't say you just have to get a PPL. If you want to get paid in an operation requiring compliance with EASA FCL, you will need an EASA CPL. In practice, this means the ATPL exams, since the sum of the CPL and IR exams is probably a bit more work.

brgds
421C

421C but this is my arguemnt! An EASA CPL is not recognised on an FAA aircraft which is under the jurisdiction of the FAA.
Money recieved is legally done so under the jurisdiction of the FAA.
Holding licences or ratings which are not legally valid which EASA ones would not be are a non sense
REQUIREMENTS which are made by EASA in a discriminatory way are flawed in two ways.
Firstly the licences hold no validity on the aircraft they are being used on and are not under the jurisdiction of EASA regarding that aircraft.
Secondly discriminating against one group of people against others is itself illegal.
The lawyers would have a field day

Pace

421C

I think you have convinced yourself what the word "operator" means. If it means "pilot" or "crew" (much as Bose suggests) why didnt the draughtsman use those words?

When you are ramp checked with your European passport and level 6 Cockney you simply point out you are not the operator - the operator is the owner, Jersey Turboprops, who, if you care to check the FAA register, you will also discover is the recorded owner. It is indeed quite possible that you as pilot might not have any financial interest in the aircraft what so ever - I know of a number of N reg groups that operate in exactly this way. You will also discover Jersey Turboprops is the insured party, that all the invoices for the aircraft, its maintenance, parking, landing fees, etc are made out to and paid by Jersey Turboprops. You will discover that in the event of a third party claim against the operator, the claim will be brought against the trust and it will be the trusts insurers who will settle the claim. I know of no owner that would place themselves in this situation unless they had operational control of the aircraft. The insurance company would not accept invoices for parking. A hire purchase company would not pay invoices for maintenance.

In the event the NAA brings a prosecution, the prosecution would have to be processed in Court against the pilot who would claim he was not the operator of the aircraft and would doubtless draw comparison with other aircraft operated by American companies in European airspace crewed by non EASA bearing pilots.

I would rather be acting for the pilot at the moment than the NAA. I think a Court would take a lot of convincing that our hapless pilot who rented the aircraft from a Jersey trust, who was not responsible for any of the costs associated with the aircraft and was required to comply with the trusts operating procedures was the owner and not a mere pilot.

For those reasons I dont believe the question is as simple as you make out. I would be asking the Court if the legislation was intended to refer to the pilot / crew / commander why those simple words were not used, and I would ask the Court to consider in the absence of a clear definition to whom the term operator would commonly refer.

I can think of one particular jet where the owner is a Swiss corporation. They purchased the aircraft, pay all the bills, contract the maintenance company etc. The aircraft is based in the UK. A company in the UK(unconnected with the Swiss corporation) solicits business and arranges charters. They tell the crew when and where to take the aircraft. So - who is the operator - the crew, the UK charter company or the Swiss corporation?

It is actually a very good point that the licenses EASA is apparently requiring would not be legal by State of Registry rules (e.g. FAA 61.3) to fly the same aircraft. So on what basis will EASA determine what EASA licenses are required?

It is a bit like proposing maintenance oversight. A Part M company, with no FAA approvals or FAA qualified individuals, has to legal way to generate a release to service (or actually perform any task whatsoever) on the airframe or maintenance documents relating to it. So what exactly will they be doing??? Apart from merely asking for a cheque. In this I am referring to the latest proposal for oversight of ME TPs and jets.

With ICAO, you can't have it both ways.

EASA is entitled to require EU citizens (not residents) to wear pink underpants in EU airspace, but they have not published such a clear proposal.

No, I wrote earier "of course the pilot isn't by definition the operator". It's just that in the case most of us on this private forum are concerned with, that of European private pilots operating FRA, the operator is often also the pilot. That's certainly the case with all the piston N-regs I know - the operator is an EU resident individual (or group of individuals).

First - the comparison with the US company. The US company is a bona fide business, which incidentally flies an aircraft for business transport. The aircraft costs are funded by the operating activities of the business. The crew are directed where and when to fly by the appropriate chain of management and decision-making.

Jersey Turboprops is what? A shell company which administers an airplane. Some EU residents fly that airplane. Who funds Jersey Turboprops? Oh, that same group of pilots. Now that's a bit different from the US corporate example you raised in court (I presume the US corporate pilots are paid to fly rather than the other way around). Who controls, as ulitmate beneficiary, Jersey Turboprops? Oh, the same group of EU pilots. Again, probably not a cast-iron analogy with the US corporate example. "So Mr Fuji", the court asks, "your client is amongst a group of individuals who are the legal beneficiary owners of the aircraft and the trust. They fund it. Jersey Turboprops has no evident purpose other than to act as an offshore shell for the administration of this aircraft on behalf of EU residents who are collectively its operators".....good luck in court.....

Easy. Whoever has the AOC. Your example isn't specific enough. The Operator could be the UK business wet leasing from the Swiss, or it could be the Swiss using the UK business as an agent. What does it matter? We are talking about Joe Pilot and his UK based N-reg Cirrus or whatever.

Interesting debate which, as is occassionally the case, I must stop participating in before my wife smashes my laptop over my head.

No-one will really know I guess until this is tested in case law. Good luck to anyone who thinks the "operator loophole" is a safe and robust construct.....